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British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Tag Archives: just cause

Workplace Drug Dealing Provides After-Acquired Cause for Termination

Employer had just cause based on evidence discovered after termination

Posted in Investigations, Just Cause, Termination, Wrongful Dismissal

In most cases, employees who commit misconduct will face the consequences of their actions during their employment, in the form of discipline or even termination for just cause. But, what if the employer only learns of an employee’s misconduct after the employee is dismissed without cause? What recourse does the employer have?

The British Columbia Court of Appeal’s ruling in Van den Boogaard v. Vancouver Pile Driving Ltd affirms that employers can rely on misconduct discovered after an employee’s dismissal to establish “after-acquired” just cause.

Mr. Van den Boogaard was a project manager for Vancouver Pile Driving, a marine contracting … Continue Reading

What Do Your Policies Say About Termination?

… and does it matter?

Posted in Damages, Employment Standards, Termination, US vs.Canadian Employment Law, Wrongful Dismissal

Many employers have policies about termination, and specifically about what an employee is entitled to if terminated without cause.  It is a good idea to try to manage the cost of terminations, but it needs to be done properly to be effective.

Oliver v. Sure Grip Controls is a recent case where a termination policy was reviewed.  The employer tried to limit its liability by reference to the policy set out in the employee handbook.  The employer had gone to the trouble of having the handbook reviewed and signed by the employee, but the handbook included this underlined statement:

I Continue Reading

No Just Cause for Termination

Problems with clarity, training, consistency and investigation

Posted in Employee Obligations, Just Cause, Litigation, Termination, Wrongful Dismissal

A recent decision of the BC Supreme Court went in favour of an employee who was terminated by her employer for alleged conflict of interest and breaches of policy.  The court determined that there was a lack of clarity, training and consistency in its policies and procedures, and a flawed investigation:  Ogden v. CIBC.

Ms. Ogden immigrated to Canada in 2000.  She learned English and earned a business degree from Royal Roads University.  She went to work with CIBC and built up a portfolio of $233 million working with Chinese clients. She was consistently a top performer.

In the … Continue Reading

Breach of Confidentiality May be Cause

Credit Union's Clear Policy Helpful

Posted in Discipline, Just Cause, Privacy, Termination

If an employee views a confidential file contrary to clear and reasonable policy, she can be fired for cause.  That was the judgment of the BC Supreme Court in Steel v. Coast Capital Savings Credit Union  2013 BCSC 527.

 The Plaintiff, Ms. Steel, was a help desk analyst in the IT department of the Defendant Coast Capital Savings.  In her job, she was able to access any document or file in the organization.  Her work was mostly unsupervised.

Included in her job description and protocols relating to document access were clear statements requiring that privacy of staff information be … Continue Reading

Terminating Employees on Disability

Truly Shark Infested Waters

Posted in Discipline, Just Cause, Termination, Wrongful Dismissal

The media is full of the story of a couple from Wales who were fired from their jobs after the husband helped save children from a shark attack.

It seems that the husband’s heroics generated a media stir at the time, which led to the employer back in Wales finding out the couple were vacationing in Australia when they were supposed to be on disability leave.  The employer decided to terminate their employment, thus generating the current media storm.

It is possible, even likely, that there is more to the story than is currently being told, but the employer’s reported … Continue Reading

“Workplace Investigations – Part 3”

Posted in Discipline, Discrimination, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In earlier posts, here and here, we discussed some legal issues that arise in workplace investigations. In this post, we will discuss some of the privacy issues that can arise.

The investigator is often asked by nervous employees whether their identity and the information they give will be kept confidential. This cannot be guaranteed.  Employees being interviewed should be made to understand that the information they give may be disclosed, in whole or in part, to other parties in an investigation as necessary.

It may not be necessary to share the identity of witnesses with other parties when, for … Continue Reading

Workplace Investigations – Part 2

Posted in Damages, Discipline, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In an earlier post, we discussed when employers may wish to conduct workplace investigations.  In this post we’ll discuss who should conduct the investigation.

Being lawyers, we usually have a quick answer to this:  legal counsel. We recognize, however, that clients don’t have unlimited funds.  So practically speaking, each situation will have to be assessed on its own facts.

In situations where a simple fact finding determination and assessment of credibility are all that is needed, the skilled manager can suffice, with counsel in the background to point them in the right direction and give legal advice based on any … Continue Reading

Workplace Investigations – Part 1

Posted in Damages, Investigations, Just Cause, Termination, Wrongful Dismissal

With the complexity of workplace law and issues, employers are subject to an increasing number of workplace obligations.  When a workplace incident arises it’s often required, or at least advisable, that an employer conduct a prompt and thorough investigation.

In this and subsequent posts, we will review some key legal issues that arise in conducting or directing a workplace investigation, including privacy, confidentiality, and the issue of legal privilege.

We will also discuss who should conduct the investigation, including when to use counsel, and when investigating counsel should be different than an employer’s usual employment counsel.

Finally, we’ll discuss some … Continue Reading

Wal-Mart Ordered to Pay Over 1 Million in Damages

Posted in Damages, Discrimination, Just Cause, Litigation, Termination, Wrongful Dismissal

On October 10, 2012, a jury awarded a former Wal-Mart employee over $1.4 million dollars in damages.  The jury found that the employee was constructively dismissed due to an abusive work environment at the Windsor Wal-Mart store.  This is the largest such award in Canadian history and, as expected, will be appealed by Wal-Mart.

Summary of the Claim

Although the case is not publicly available, we can glean some facts from media reports and the Statement of Claim.

Meredith Boucher was an assistant manager at a Wal-Mart in Windsor, Ontario with nine years service. She alleged abuse by the store … Continue Reading

At Will Employment: What’s the Big Deal?

Posted in Damages, Employment Standards, Just Cause, Termination, US vs.Canadian Employment Law, Wrongful Dismissal

Employment in Canada is not “at will”. But is at will employment really all it’s cracked up to be? Does it make the United States a friendlier place for employers?

We don’t think so and we are happy to engage Jeff Polsky in the discussion.

Jeff started this on the California Employment Law blog with a post, Like a Whole Different Country, suggesting that being an employer without at will employment was too scary to contemplate. Well, the fact is that employers in Canada are doing just fine, thank you very much, having traded the lottery of at will … Continue Reading

Jury Awards Punitive Damages

Posted in Damages, Just Cause, Litigation, Termination, Wrongful Dismissal

A jury in Prince George, British Columbia has awarded $573,000 in punitive damages to a terminated employee.  It may be the highest such award in Canadian employment law history.

The employee had worked for Babine Forest Products for 34 years.  The company was acquired by Portland, Oregon based Hampton Lumber Mills in 2006.  The employee was then dismissed for cause without notice or compensation.

A jury trial does not result in reasons for decision, but it seems the jury was convinced that there was no cause for dismissal, that the employer had cooked up the cause excuse to avoid severance … Continue Reading

The Good and Bad of Written Employment Agreements

Posted in Employee Obligations, Just Cause, Termination

There is much good that can come from a written employment agreement.  But there is also a considerable amount of trouble lurking if it is not well drafted.

Both sides of this coin were evident in the case of Ernst v. Destiny Software.  In a previous post we noted how the written agreement helped the employer win its argument that there was cause for dismissal.  The decision also reviewed how written employment agreements are properly interpreted and made a couple of findings against the employer based on what was not in the agreement.

The most important point is … Continue Reading

Just Cause – Dishonesty, Breach of Contract, Good Faith

Posted in Employee Obligations, Just Cause, Litigation, Termination, Wrongful Dismissal

It is always difficult for an employer to prove just cause.  In an earlier post, we discussed performance based just cause.  This post looks at a recent case from British Columbia that found just cause based on dishonesty, breach of contract and breach of the duty of good faith.

Ernst was hired as a senior executive by a Vancouver based company to market a system for the secure distribution of recorded music over the internet.  At the time, he was living in Alberta.  He negotiated a written employment contract that said he would initially work from his home in … Continue Reading

When Do Performance Problems Amount to Just Cause?

Posted in Termination, Wrongful Dismissal

Our courts continue to emphasize how difficult it is to establish just cause for termination based on performance. A recent case made it clear that any such termination must be preceded by a very clear and current warning.

The court accepted that the employee’s performance was clearly below standard, but not “grossly deficient”. Accordingly, a warning was required. An effective warning will

(1)    state a reasonable objective standard of performance to be met,
(2)    provide details of the employee’s failure to meet that standard,
(3)    give a reasonable amount of time to correct the situation,
(4)    state in clear language … Continue Reading